U.S. appeals court says Trump cannot block Twitter followers – TheNigerialawyer

According to the 2nd Circuit, the First Amendment doesn’t allow
public officials when using social media accounts for official
purposes to exclude others in viewpoint discrimination.

President Donald Trump can’t block critics from seeing his
tweets. On Tuesday, the Second Circuit Court of Appeals affirmed a
decision holding that such blocking amounts to a constitutional
violation.

“The salient issues in this case arise from the decision of the
President to use a relatively new type of social media platform to
conduct official business and to interact with the public,” states
the opinion from Circuit Judge Barrington Parker.

“We do not consider or decide whether an elected official
violates the Constitution by excluding persons from a wholly
private social media account. Nor do we consider or decide whether
private social media companies are bound by the First Amendment
when policing their platforms.

We do conclude, however, that the First Amendment does not
permit a public official who utilizes a social media account for
all manner of official purposes to exclude persons from an
otherwise‐open online dialogue because they expressed views with
which the official disagrees.”

The lawsuit came from the Knight First Amendment Institute at
Columbia University after @realdonaldtrump blocked dozens of
individuals.

In May 2018, U.S. District Judge Naomi Reice Buchwald issued a
first-of-its-kind decision agreeing with plaintiffs that Trump was
using Twitter as a public forum to share official information in
his capacity as president. The judge highlighted the interactive
nature of Twitter and the ability of audiences to engage in
conversations around someone’s tweets. To be blocked, meant less
ability to see other people’s replies and respond accordingly.
Trump would have been better off muting any listeners whose
viewpoints he found distasteful, Buchwald added.

On appeal, Trump continued to argue that his Twitter account was
a private vehicle for his own speech and others had no right of
access. He further contended that, to the extent the Account is
government‐controlled, posts on it are government speech to which
the First Amendment does not apply.

“We are not persuaded,” responds the 2nd Circuit. “We conclude
that the evidence of the official nature of the Account is
overwhelming. We also conclude that once the President has chosen a
platform and opened up its interactive space to millions of users
and participants, he may not selectively exclude those whose views
he disagrees with.”

Parker adds that the fact that @realdonaldtrump was for Trump’s
personal use before he assumed office in 2016 and that the
government doesn’t “own” it in the traditional sense is “not
determinative of whether the property is, in fact, sufficiently
controlled by the government to make it a forum for First Amendment
purposes.”

“Because the President, as we have seen, acts in an official
capacity when he tweets, we conclude that he acts in the same
capacity when he blocks those who disagree with him,” continues the
opinion. “Here, a public official and his subordinates hold out and
use a social media account open to the public as an official
account for conducting official business. That account has
interactive features open to the public, making public interaction
a prominent feature of the account. These factors mean that the
account is not private…. Accordingly, the President excluded the
Individual Plaintiffs from government‐controlled property when he
used the blocking function of the Account to exclude disfavored
voices.”

The decision today is careful about going too far. Besides
disclaiming any decision on whether social media companies like
Twitter or Facebook are bound by the First Amendment when policing
their platforms, the federal appeals circuit notes that not every
social media account operated by a public official is a government
account.

According to Parker, “Whether First Amendment concerns are
triggered when a public official uses his account in ways that
differ from those presented on this appeal will in most instances
be a fact‐specific inquiry. The outcome of that inquiry will be
informed by how the official describes and uses the account; to
whom features of the account are made available; and how others,
including government officials and agencies, regard and treat the
account. But these are concerns for other cases and other days and
are ones we are not required to consider or resolve on this
appeal.”

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